RIVERMAN’S VISTA: Bangsamoro not BJE

QUEZON CITY (MindaNews/09 October) — The Framework Agreement between the Government of the Republic of the Philippines (GRP) and the Moro National Liberation Front (MILF) once again disinters the specter of the failed 2008 Memorandum of Agreement on Ancestral Domain (MOA-AD) initiated by the Gloria Macapagal-Arroyo administration. These fears are unfounded. There is every reason to believe that the Bangsamoro envisioned under the Framework Agreement is not a repeat of the Bangsamoro Juridical Entity sought to be established by the MOA-Ad.

Unlike the MOA-AD which generated a massive uproar of protest by the inhabitants of the affected areas, spearheaded by the local executives and other Christian communities, which reverberated throughout the archipelago, there is a universal acceptance and support to the Framework Agreement among Christian and Muslims alike.

With the new agreement there is no significant objection against the proposed governance arrangement either in congress or by the international community which expressed their unqualified support to the agreement. Even the breakaway Muslim armed groups like the Bangsamoro Islamic Freedom Fighters, which previously launched terrorist activities following the scrapping of the MOA-Ad, have decided to assume a wait and see attitude.

One of the main objections pointed out by the Supreme Court in declaring the MOA-AD unconstitutional was the failure of the Presidential Adviser on the Peace Process to carry out the pertinent consultation process, as mandated by Executive Order (EO) No. 3, RA 7160, and RA 8371. The Court observed the furtive process by which the MOA-AD was designed and crafted which runs contrary to and in excess of the legal authority, and amounts to a whimsical, capricious, oppressive, arbitrary and despotic exercise thereof. It, the Court further said, illustrates a gross evasion of positive duty and a virtual refusal to perform the duty enjoined.

This time guided by the October 2008 decision, the GPH and the MILF committed to work together in order to ensure the widest acceptability of the Bangsamoro Basic Law as drafted by the Transitory Commission and the core areas mentioned in the previous paragraph, through a process of popular ratification among all the Bangsamoro within the areas for their adoption.

Additionally, they stipulated that an international third party monitoring team shall be present to ensure that the process is free, fair, credible, legitimate and in conformity with international standards. (V Territory, par. 2 of Framework Agreement).

GPH Chief Negotiator Marvic Leonen himself stated that the Agreement calls for a transition process that ensures transparency and credibility.

Under the new Agreement, the proposed Transition Committee, composed of citizens of mostly Bangsamoro descent, will draft a proposed basic law creating the Bangsamoro region which will replace the Autonomous Region in Muslim Mindanao ARMM). The Bangsamoro basic law would be crafted in consultation with members of Congress; and once passed, it will be submitted to the people who will be affected or covered by the Bangsamoro region, for ratification through a plebiscite.

The extensive process of public consultation under the new agreement is much unlike the MOA-AD which was shrouded in secrecy. The Court also emphasized in its October 2008 decision that the MOA-AD went beyond the bounds of the 1987 Constitution and laws.

According to the Court, not only its specific provisions but the very concept underlying them, namely, the associative relationship envisioned between the GRP and the BJE, are unconstitutional, for the concept presupposes that the associated entity is a state and implies that the same is on its way to independence.

On the other hand, the Framework Agreement does not call for a new identity like the BJE which must be created outside the flexibilities of the present constitution. As understood in the new Agreement however, the State continues to exercise sovereign powers, without prejudice to inclusion of other powers which may in future be agreed upon by the parties, including defense and external security; foreign policy; common market and global trade, and the like. These very same powers are also granted to the state by the ARMM Organic Law.

Again, much like the ARMM under R.A. 9054, Bangsamoro shall also be granted judicial powers, revenue generation and a just and equitable share in the fruits of national patrimony. All transitional processes will be undertaking within the Constitution and pertinent laws of the Philippines.

All told, the Bangsamoro is not a separate political entity but its territory shall remain part of the Philippine and its inhabitants part of the Filipino nation. The powers granted to it are inclusive within the concept of autonomy, nothing more. Clearly, this is a radical departure from the MOA-Ad which contemplates a BJE that is a sub-state thus implying a move towards independence. For obvious reasons, the State cannot allow the violation of the national integrity provisions of the Constitution which the establishment of the BJE will precisely do.

As clarified by Leonen, the commitments made by the government are within the parameters of the Constitution, or within the flexibilities of the existing Constitution. He added that while part of the powers of the 15-member Transition Commission will be “to work on proposals to amend the Philippine Constitution for the purpose of accommodating and entrenching in the Constitution the agreements of the parties whenever necessary without derogating from any prior peace agreement, there is no commitment there that such a proposal is going to be acted upon by Congress.

As envisioned, the Bangsamoro will not infringe the Constitution since it will merely replace the Autonomous Region in Muslim Mindanao (ARMM) whose creation was mandated by the Constitution itself and by its Organic Act Republic Act 9054. Even the ministerial form of government, which to many may be a not-so familiar concept, does not necessarily call for a constitutional amendment since in reference to Bangsamoro, it merely relates to the provisions of autonomy which is still within the constitutional framework.

Again as explained by Leonen, it is akin to a parliamentary government where genuine political parties will “dominate and try to capture seats that are allocated maybe to various geographical areas or probably the presenting certain sectors” and from which they select their chief minister, but stressed that they would still be under the supervision of the President. Clearly, the Bangsamoro is not the BJE.

Both the GPH and the MILF would have been extremely conscious of the MOA-AD fiasco and averse running the risk of engaging in extensive negotiations only to come up with an agreement that will fail to pass judicial scrutiny because it violates the Constitution. (MindaViews is the opinion section of MindaNews. Dean Tony La Viña is a human rights and environmental lawyer from Cagayan de Oro City. He was a member of the Government of the Philippines Peace Panel that negotiated with the MILF from January-June 2010. He is currently the Dean of the Ateneo School of Government. Dean Tony can be reached at Tonylavs@gmail.com. Follow him on Facebook: tlavina@yahoo.com and on Twitter: tonylavs)